Since February 2015, when the ITC announced its Pilot Program for expedited rulings on whether ITC exclusion and cease-and-desist orders cover redesigns or new products, the Commission has issued four decisions under the program (see our previous client alert regarding the Pilot Program). Two of the requests for advisory opinions were initially referred to the Office of Unfair Import Investigations (OUII) for consideration, while the other two proceedings were initially handled by the Office of the General Counsel. ...›

The ITC’s docket experienced a strong uptick in 2016, with new investigations approaching the record highs of 2010 and 2011, the years of the smartphone wars. 54 new investigations were instituted at the ITC in 2016, compared to an average of approximately 39 per year from 2012 to 2015. ...›

In the last year, this blog has covered a number of substantial developments at the International Trade Commission. Among other things, 2016 saw (1) an increased usage of the ITC’s 100-day program for early resolution of potentially case-dispositive issues; (2) a half-dozen decisions on Section 101 patentability defenses; (3) general exclusion orders being issued at a rate above the historical average; (4) a rare full Commission hearing on a Section 337 investigation; and (5) the first antitrust-based investigation in more than 25 years. ...›

The Commission will review Judge Dee Lord’s initial determination (“ID”) dismissing U.S. Steel’s antitrust claims on the pleadings. As we previously posted (here), Judge Lord ruled that U.S. Steel was required to plead federal antitrust standing to support its antitrust claim under Section 337, but had failed to do so. ...›

On December 9, 2016, following oral arguments two days earlier, the Federal Circuit affirmed, without opinion, the ITC’s decision concerning claim construction and non-infringement in Outdoor Grills, Inv. No. 337-TA-895. Although the ITC in Outdoor Grills found a violation of Section 337 by certain respondents, the issues on appeal concerned claim construction and non-infringement findings with respect to other respondents. ...›

On October 7, 2016, the Federal Circuit heard oral arguments in an appeal from a decision in Certain Opaque Polymers, Inv. No. 337-TA-883, where the Commission imposed case dispositive sanctions on Respondents for bad faith spoliation of evidence and issued a 25 year limited exclusion order barring the importation of products made by or for Respondents using Complainant’s asserted trade secrets. The appeal was heard by a panel consisting of Judges Lourie, Mayer, and O’Malley. ...›

Judge Dee Lord dismissed U.S. Steel’s antitrust claims on the pleadings because U.S. Steel did not plead facts showing that it had antitrust standing. U.S. Steel would be required to plead antitrust standing in district court, and Judge Lord ruled that it is required to do so in a Section 337 proceeding as well. The ...›

On October 20, 2016, the Commission denied yet another request for a stay of a remedial order in an investigation pending appeal to the Federal Circuit. The Commission’s denial in Certain Marine Sonar Imaging Devices, Inv. No. 337-TA-921, follows a long line of decisions denying stays of remedial orders pending Federal Circuit appeal (with a recent, notable exception in Digital Models), indicating that it continues to be very difficult to stay ITC remedial orders absent an “admittedly difficult legal question” concerning the order. ...›

To remedy violations of Section 337 of the Trade Act of 1930, as amended (“Section 337”), the U.S. International Trade Commission (“ITC” or “Commission”) “shall” issue an exclusion order barring the importation of infringing articles. The default remedy is a limited exclusion order (“LEO”) directed to the infringing imported products of named respondents. ...›

In a recent ruling, the Commission made clear that public interest issues are not suitable for resolution through the ITC’s 100-day Early Disposition Pilot Program. Specifically, the Commission declined to employ the program to determine “whether the asserted patents were standards-essential and are encumbered by mandatory licensing obligations giving rise to public interest concerns.” ...›